DRI Today - Legal Research, Law Blog and Magazine Archives - Rick-ParkerDRI’s flagship publication for over 40 years, is a national, monthly publication that contains original writings on topics of professional interest to lawyers and others concerned with the defense of civil actions.http://forthedefense.org/
http://www.rssboard.org/rss-specificationBlogEngine.NET 1.6.1.0en-GBhttp://forthedefense.org/opml.axdhttp://www.dritoday.org/syndication.axdDRIDRI Today - Legal Research, Law Blog and Magazine Archives0.0000000.000000Mississippi Joins the Growing List of Jurisdictions Finding Coverage for Defective Construction<p>On February 11, 2010, the Mississippi supreme court issued its opinion in Architex Ass'n, Inc. v. Scottsdale Ins. Co., --- So. 3d ---, 2010 WL 457236 (Miss. 2010), thereby joining an increasing number of courts who have interpreted the standard form general liability policy to provide coverage to a general contractor for defective construction. In Architex, the insured general contractor was sued after a hotel it built for a client suffered serious structural problems, most notably, the alleged absence of re-bar in the foundation. The trial court found that the allegations of the complaint failed to describe an "occurrence" and therefore granted summary judgment against the contractor. The Mississippi supreme court, however, reversed and remanded the case for a determination of remaining factual issues. </p>
<p>The court reviewed the law on this particular point as it has recently developed throughout the country, choosing to side with those courts which have held that defective construction does describe an "occurrence." Its reasoning, however, was markedly different. Scottsdale argued that the contractor deliberately hired subcontractors to perform the work and therefore the result of their work was a result of a deliberate act -- and therefore not an "occurrence." The high court rejected this bizarre argument, choosing instead to consider the policy "as a whole" to find that defective construction by a subcontractor was accidental from the contractor's point of view and therefore an "occurrence." Reading the policy "as a whole" is of course political jargon for interpreting exclusions to provide coverage in the first instance, a fundamental mis-step in insurance policy interpretation.</p>
<p>Of course the court stopped short of deciding whether the "your work" and "your product" exclusions might bar coverage that otherwise exists, choosing instead to punt that issue to the trial court. Since the trial court's decision was premised on the absence of an "occurrence" in the first instance, the remand would appear to be a necessary evil. Obviously, the court could not opine on an issue not first presented to the trial court. Given the heat of this topic in recent years, it should come as no great surprise should this same court have occasion to review the trial court's decision on remand.</p>
<p>It seems that these days, everyone expects a bail-out when things go wrong. The Mississippi supreme court certainly bailed Architex out of the problems created by its own faulty construction. Whether done in the name of judicial activism or consumer protectionism, the result is the same: the contractor gets a bail-out at the expense of the insurer. But just as the government bail-out costs all the taxpayers, so too the judicial bail-out costs everyone who purchases insurance, in the form of higher premiums.</p>
<!-- AddThis button extension by Mayank Raichura -->
<!-- AddThis Button BEGIN -->
<div stype="padding: 5px;">
<script type="text/javascript">
var addthis_pub="blogengineextensionaddthis";
</script>
<a href="http://www.addthis.com/bookmark.php?v=20" onmouseover="return addthis_open(this, '', 'http://forthedefense.org/post/Mississippi-Joins-the-Growing-List-of-Jurisdictions-Finding-Coverage-for-Defective-Construction.aspx', 'Mississippi Joins the Growing List of Jurisdictions Finding Coverage for Defective Construction')" onmouseout="addthis_close()" onclick="return addthis_sendto()"><img src="http://s7.addthis.com/static/btn/sm-share-en.gif" height="16" alt="Bookmark and Share" style="border:0"/></a>
<script type="text/javascript" src="http://s7.addthis.com/js/200/addthis_widget.js"></script>
</div>
<!-- AddThis Button END -->
http://forthedefense.org/post/Mississippi-Joins-the-Growing-List-of-Jurisdictions-Finding-Coverage-for-Defective-Construction.aspx
Rick Parkerhttp://forthedefense.org/post/Mississippi-Joins-the-Growing-List-of-Jurisdictions-Finding-Coverage-for-Defective-Construction.aspx#commenthttp://forthedefense.org/post.aspx?id=8d1906a3-3afb-41e2-b44f-1bb53d9a525fWed, 17 Feb 2010 04:46:00 -1100Construction LawRick Parkerhttp://forthedefense.org/pingback.axdhttp://forthedefense.org/post.aspx?id=8d1906a3-3afb-41e2-b44f-1bb53d9a525f0http://forthedefense.org/trackback.axd?id=8d1906a3-3afb-41e2-b44f-1bb53d9a525fhttp://forthedefense.org/post/Mississippi-Joins-the-Growing-List-of-Jurisdictions-Finding-Coverage-for-Defective-Construction.aspx#commenthttp://forthedefense.org/syndication.axd?post=8d1906a3-3afb-41e2-b44f-1bb53d9a525f